Sunday, August 26, 2007

Where Did The Libertarianism Go ?

Samizdata has decided to go all Guardian on us.

As ever, the first riposte is to wonder why these advocates of Vulcan justice never seem to notice the queue of social workers, psychologists, aromatherapists and various other candidates for the Golgafrinchan B Ark, all lined up ready to file into court and explain why Joe Scumbag is the real victim.

Let's not have any pious sermonising about the need to cleanse our courts of emotionalism - the judicary are perfectly prepared to put with all manner of weeping and whailing, but only if it serves the cause of letting lowlife off the hook.

Equally, in so far as the argument seems to rest on the belief that we should trust our betters on the bench, rather than risk contaminating the process with the idiot emotionalism of the lower orders, it's an odd argument for Libertarians to make. Surely if you think people are ignorant morons, that kind of undercuts the case for Libertarianism ?

There's something more to it though. Communism fails, in part at least, because it requires people to sacrifice themselves and their own natural instincts to conform to some absurd ideological model of how things should be. Now the courts are going the same way.

It is entirely right and proper that people should demand, and even expect, that the courts should provide satisfaction - it is a natural human instinct, and we on the Right, above all else, recognise the importance of dealing with humanity as it is.

More to the point, the supposed contrast between the rationality of the courts and the fickleness of the (hypothetical) mob is a fraud. On the contrary, it is the pro-courts side that demands that the whole business of dealing with individual crimes be subordinated to the requirements of social engineering and political theatre. The public are remarkably consistent in wanting the punishment to fit the crime, it's the courts that want the punishment to fit the particular tactical needs of the political establishment at the moment of sentencing.

That's why it's so plain weird to see Libertarian's getting all misty-eyed over the courts. What could be more inimical to the spirit of Libertarianism than victims denied justice by the desire of the State to push its own agenda ?


OK, there's a bit of life in the comments, so let me clarify my position. There's actually two debates here. The first is the specific question of what should be allowable in court. You can argue that courts should be the sphere of pure logic, insulated from emotionalism, but opposing victim impact statements, even while allowing testimony in mitigation from all manner of voodoo scientists, makes no kind of sense.

The second question is the wider one. What is the legal system actually for ? To protect the innocent and resolve disputes, or to pursue some abstract notion of justice ? It's perfectly possible to oppose victim impact statements even while opposing the determination of the courts to deal with crime solely in the abstract. For that matter, why should people who don't trust the state in any other context nevertheless trust state employees to deliver on such a slippery concept as justice ?

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